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434 Phil. 264


[ G.R. No. 139447, July 23, 2002 ]




In rape cases, the victims’ scars cannot be seen and their wounds will never heal. Their dignity and self-worth inevitably and, oftentimes, irreparably suffer. Their pain may vanish in time and their tears may eventually dry up but their lives will never be the same again. Memories of their cruel fate will haunt them the rest of their life. The tragedy and suffering are compounded in cases of incestuous rapes as they involve a serious breach of trust and destroy the very foundation of society --- the family.

In the case at bar, the victim of abuse was nine (9) year old GINA APAREJADO, the aggressor being her own father, accused FRANCISCO APAREJADO. Provincial Prosecutor Alberto Alforte originally charged the accused with rape in an Information, dated June 28, 1996,[1] thus:

“That sometime at Barangay Buri, Municipality of Mandaon, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his own daughter, Gina Aparejado against her will and consent.


During his arraignment on October 16, 1996, accused, duly assisted by his counsel, pled not guilty. On January 6, 1997, before the case could be scheduled for trial, an amended Information was filed with leave of court by Prosecutor Danilo Ontog to specify the approximate date of the commission of the offense and the age of the victim, thus:[2]

“That on or about the fourth week of February 1996 at Barangay Buri, Municipality of Mandaon, Province of Masbate, Philippines, within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge with his 9 year old daughter GINA APAREJADO against her will.


No objection was raised by the accused. Accordingly, the trial court admitted the amended Information ruling that the amendment referred only to matters of form.[3] The initial trial of the case was held on May 22, 1997, four (4) months after the amendment of the Information.

The prosecution evidence disclose that MRS. MARLYN ESPINOSA, an employee of the Department of Social Welfare and Development (DSWD) in Sorsogon, was instrumental in the arrest of the accused. She learned about the sexual abuse in the Aparejado household when Violeta Aparejado, one of her wards under the protective custody of the DSWD, revealed to her that she was molested by her father, accused Francisco Aparejado, at the age of fourteen while living under his care. Violeta also informed her that she has two (2) younger sisters, Gina and Evelyn, who were still living with the accused. She expressed her apprehension that her siblings might be suffering the same fate in the hands of the accused.

Marlyn conducted a social investigation at Brgy. Igang, Masbate, Masbate – the last known address of the Aparejados. Collateral information gathered from the neighbors of the Aparejados revealed that Gina was likewise being sexually abused by the accused and that the family has transferred their residence to Brgy. Buri, Mandaon, Masbate.

To verify the information she received, Marlyn, together with Violeta, proceeded to the 504th PNP CIC at Camp Bony Serrano, Masbate, on February 22, 1996. They sought the assistance of SPO1 AMABLE EQUIZA in the follow-up investigation of the case. SPO1 Equiza immediately took action. He took the statement of Violeta at the police station. He inquired from Violeta how many times the accused violated her. Violeta replied that she could no longer recall because the accused would rape her everytime her mother and siblings were not in the house. She said that the sexual assaults stopped only when she ran away from their house. She stayed for a while in the house of a certain Inday and later transferred to the DSWD in Masbate.

The revelations of Violeta triggered further police investigation. On February 24, 1996, SPO1 Equiza, Marlyn and Violeta located the house of the accused in Brgy. Buri, Mandaon, Masbate. SPO1 Equiza requested Marlyn and Violeta to go to the accused’s house and talk to Gina first. He did not accompany the two as he was apprehensive that the accused might not allow them to talk to Gina. Moreover, his extensive experience in police work has taught him that a guilty suspect will try to escape at the sight of police authorities.

Marlyn and Violeta talked to Gina in private. Gina, the nine-year old unschooled sister of Violeta, confirmed that she has been repeatedly abused by the accused. She has been abused by the accused even while they were residing in Brgy. Igang. She slept with the accused and her brothers at night. Her mother, Zenaida, has long left their house as she was constantly beaten up by the accused and has been residing in Manila.[4] Gina likewise revealed that a few days before, the accused sexually assaulted her in their house. He took off her panty and laid on top of her. He thrust his penis into her organ causing her intense pain. All she could do was weep. After the coitus, accused threatened her with harm should she tell anyone about the incident.

Marlyn and Violeta reported to SPO1 Equiza about Gina’s revelations. SPO1 Equiza accompanied Marlyn and Violeta back to accused’s house but did not identify himself as a police officer. Violeta then asked accused’s permission if they could bring Gina to the poblacion, in Mandaon, on the pretext that she would buy Gina a dress. The accused acceded. When they arrived in Mandaon, SPO1 Equiza had Gina’s complaint for rape recorded in the police blotter. SPO1 Equiza then conducted a preliminary investigation where Gina personally affirmed in writing the sexual abuse she suffered in the hands of the accused a few days earlier. Thereafter, SPO1 Equiza, Marlyn and Violeta accompanied Gina to Dr. Luis Aguirre, Municipal Health Officer of Mandaon, for medical examination.[5] The examination revealed that Gina’s hymen suffered multiple, healed lacerations. Her organ also admitted easily the introduction of fingers. Microscopic examination of her vagina likewise showed the presence of dead spermatozoa which proved not only penile penetration of Gina’s organ but also the ejaculation by a male organ.[6]

On the basis of the result of the medical examination and the sworn statements of Gina, Marlyn and Violeta, the police officers assisted Gina in filing a criminal complaint for rape against the accused at the Municipal Circuit Trial Court (MCTC) of Mandaon. Subsequently, police authorities arrested the accused by virtue of the warrant of arrest issued by MCTC Judge Silvestre Aguirre.

Months later, upon the request of Prosecutor Ontog, the police officers took an additional sworn statement from Gina who was unschooled and did not know how to tell the date and time. The additional statement was needed to fix the nearest approximate date of the crime and to enable the prosecutor to amend the original Information. From the statement of Gina, the police authorities placed the date of the crime on the fourth week of February, 1996. Gina recounted that she was last molested by the accused a few days before Marlyn came to their house on February 26, 1996. The latter date was established in the sworn statements of Marlyn and SPO1 Equiza.[7]

After the prosecution formally offered its evidence and rested its case, accused’s counsel requested the trial court for the suspension of the proceedings as he would file a motion to have the accused undergo a mental examination. The trial court gave accused’s counsel ten (10) days within which to file his motion in writing. The same period was granted to the prosecutor to comment on the motion.

In his motion,[8] dated September 26, 1997, accused’s counsel formally requested the court to commission a government physician to conduct a mental examination of the accused on the ground that the accused was suffering from a mental disorder.

The prosecutor opposed[9] the motion. He charged that the motion was purely dilatory and highly suspect for two (2) reasons: first, accused’s counsel claimed mental disorder on the part of the accused only after the prosecution rested its case; second, the accused did not exhibit any unusual behavior during the trial as to suspect that he was mentally unstable.

In its Order, dated October 27, 1997, the trial court denied for the time being the motion for mental examination as no scintilla of evidence was presented by the defense counsel in support thereof. However, the trial court assured the defense that should it find, during the presentation of the accused’s evidence, that the accused is suffering from mental disorder, it would motu proprio order the mental examination of accused.[10]

Several settings were made for the presentation of accused’s evidence but they were all cancelled. Finally, in the May 13, 1999 hearing, accused’s counsel manifested that he would not present evidence for the accused. Instead, he requested for fifteen (15) days within which to submit a pleading that would acquit the accused. His motion was granted in open court, with a caveat that after the expiration of said time, the case would be deemed submitted for decision.[11]

As the period expired and accused’s counsel did not submit his pleading, the case was deemed submitted for decision. After an evaluation of the evidence, the trial court found the accused guilty of qualified rape and imposed on him the supreme penalty of death, thus:

“WHEREFORE, the Court finds the accused Francisco Aparejado GUILTY beyond reasonable doubt of the crime of RAPE under Article 335 of the Revised Penal Code as amended by R.A. No. 7659 and hereby imposes the supreme penalty of death with all the accessory penalties provided by law; to indemnify the victim Gina Aparejado the sum of P75,000.00 as compensatory damages without subsidiary imprisonment in case of insolvency.

x x x x x x x x x


On automatic appeal, the appellant contends:



On the first assigned error, appellant assails his conviction as it is not allegedly based on credible evidence. He cited a portion of Gina’s testimony where she failed to answer some questions propounded by the trial court allegedly for no apparent reason. Appellant charges that the unanswered queries destroyed the prosecution’s case against him.

We disagree. Traditionally, the calibration of a witness’ credibility by the trial court is accorded considerable weight as it is the trial judge who witnesses first-hand the demeanor of witnesses as they testify. Thus, unless it is shown that the trial court misappreciated some material facts, its assessment of the credibility of a witness will not be disturbed.

In the case at bar, we have carefully scrutinized Gina’s testimony and hold that the trial court did not err in giving it credence. First, the fact of sexual abuse was clearly established by the prosecution. Gina categorically stated, albeit in simple terms, how she was abused by the appellant. She identified him in court without any hesitation. Second, it is unthinkable for Gina, a nine-year old, barrio-bred, unschooled girl to fabricate a serious charge of rape against her own father unless she really suffered the sexual assault. Indeed, where the accusing words come from a girl of tender years and they are directed against her father, they are difficult to disbelieve. We have taken judicial notice of our culture where children are brought up to revere their elders and it is highly improbable for a young daughter to concoct a brazen lie against her elders.[13] Third, we find appellant’s belated effort to assail the credibility of his victim pathetic considering that he did not proffer any evidence, not even his own testimony, to prove his alleged innocence.

Anent the second assigned error, appellant contends that the trial court erred in convicting him under the amended Information. He argues that under the Rules, after an accused is arraigned, the Information can only be amended, with leave of court, as to matters of form and only when the amendment can be done without prejudice to the rights of the accused. In the case at bar, appellant contends that he had already pled “not guilty” when the prosecution moved to amend the Information against him, adding therein the date of commission of the offense and the age of the rape victim. Appellant argues that these amendments are substantial and prejudiced his rights to be informed of the nature of the accusation against him.

We rule that the appellant was validly tried under the amended Information. It is clear from the records that appellant did not raise any objection to the amendments made in the Information either before or during his trial. In fact, he participated in the trial and his counsel subjected the prosecution witnesses to grueling cross-examination. It was only after he was convicted that he assails the amendment. This is impermissible. The settled rule is that objections as to matters of form or substance in the Information cannot be made for the first time on appeal.[14] They must be seasonably raised, otherwise, the defects are deemed waived.[15]

Be that as it may, we hold that although the guilt of the appellant was proved beyond reasonable doubt, the imposition of the supreme penalty of death against him is unjustified. Section 11 of Republic Act 7659, the law in force at the time of the commission of the rape in this case, provides for the imposition of the death penalty if, inter alia, the rape victim is under eighteen (18) years of age and the offender is a parent of the victim. These twin circumstances – minority of the victim and relationship to the accused – qualify the crime. As such, they must be both alleged in the Information and proved beyond reasonable doubt to justify the imposition of the graver penalty of death. The minority of the rape victim must be proved by competent evidence, i.e., by presentation of a duly certified certificate of live birth or some other official document or record, such as a baptismal certificate or school record.[16]  The testimony of the victim alone as to her age, even if not challenged by the accused, would not qualify the crime of rape and warrant the imposition of the death penalty.[17] We note that the trial court did not take judicial notice of the age of the victim which is alleged in the Information as nine (9). Neither can this Court which did not try the case at bar take notice of her age on the basis of her physical appearance. In sum, no competent proof was offered by the prosecution to prove the minority of Gina. Prescinding therefrom, appellant cannot be convicted of qualified rape under the amended Information and the death penalty imposed against him has to be reduced to reclusion perpetua.

We also hold that the trial court’s award of seventy-five thousand (P75,000.00) pesos as civil indemnity to the victim should be modified. Civil indemnity, automatically granted to the victim upon the finding of rape, should be limited to the amount of fifty thousand (P50,000.00) pesos as the penalty imposable on the accused is not death.[18] An additional award of fifty thousand (P50,000.00) pesos as moral damages is proper as the rape victim was of tender age at the time of the commission of the offense. Proof is not needed for its award as courts can take judicial notice of the physical and psychological trauma inevitably suffered by a rape victim.[19] Furthermore, since it has been shown in the victim’s testimony that the accused is her father, we hold that the award of exemplary damages in the amount of twenty-five thousand pesos (P25,000.00) is proper.

IN VIEW WHEREOF, appellant FRANCISCO APAREJADO is convicted of simple rape and is meted the penalty of reclusion perpetua, together with all accessory penalties attendant thereto. He is ordered to pay fifty thousand (P50,000.00) pesos as moral damages and an additional fifty thousand (P50,000.00) pesos as civil indemnity plus twenty-five thousand pesos (P25,000.00) as exemplary damages, or a total of one hundred twenty-five thousand (P125,000.00) pesos. No pronouncement as to costs.


Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., on leave.
Bellosillo, J., no part. Did not take part in deliberations.

[1] Rollo, p. 6.

[2] Ibid., p. 5.

[3] Order of Judge Narciso G. Bravo, dated March 5, 1997; Original Records, p. 33.

[4] May 22, 1997 TSN, pp.1-13; August 4, 1997 TSN, p. 4.

[5] Sworn Statement of Mrs. Marlyn Espinosa, dated February 26, 1996; Original Records, p. 5.

[6] September 25, 1997 TSN, pp. 1-4.

[7] SPO1 Equiza, August 4, 1997 TSN, pp. 1-9.

[8] Original Records, p. 68.

[9] Opposition/Comment, dated October 8, 1997; Original Records, p. 69.

[10] Order, dated October 27, 1997; Original Records, p. 71.

[11] Original Records, p. 106.

[12] Decision, dated July 5, 1999, penned by Judge Narciso G. Bravo, Regional Trial Court, 5th Judicial Region, Branch 46, Masbate, Masbate; Rollo, pp. 44-47.

[13] People vs. Pecayo, Sr., 348 SCRA 95 (2000).

[14] People vs. Elpedes, 350 SCRA 716 (2001).

[15] U.S. vs. Rivera, 23 Phil. 383 (1912); U.S. vs. Mabirel, 4 Phil. 308 (1905).

[16] People vs. Francisco, 350 SCRA 55 (2001); People vs. San Agustin, 350 SCRA 216 (2001); People vs. Pecayo, Sr., supra; People vs. Marquez, 347 SCRA 510 (2000), citing People vs. Tabanggay, 334 SCRA 575 (2000).

[17] People vs. Marquez, supra.

[18] People vs. Torres, 350 SCRA 232 (2001); People vs. Sandoval, supra, citing People vs. Poñado, 311 SCRA 529 (1999).

[19] Article 2219 (3), New Civil Code; People vs. Baway, 350 SCRA 29 (2001); People vs. Sandoval, 348 SCRA 476 (2000), citing People vs. Prades, 293 SCRA 411 (1998).

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